The following commentary first ran in a Special Issue of Legal Eye on the ICC, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organization that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the Legal Eye eLetter, click here.

On March 3, 2015, the Appeals Chamber,[i] Judge Anita Ušacka dissenting,[ii] issued its first Judgment on reparations in the Lubanga case (Appeals Chamber Reparations Judgment or Judgment).[iii] The Judgment follows the Trial Chamber’s decision establishing the principles and procedures to be applied to reparations (Trial Chamber’s Reparations Decision),[iv] issued on August 7, 2012, which was appealed jointly by the Legal Representatives of Victims with the OPCV, and by the Defense.[v]

The Appeals Chamber amended the Trial Chamber’s Reparations Decision and ordered the Trust Fund for Victims (TFV) to implement the Judgment and its annexed order for collective reparations against Lubanga.[vi] The Chamber directed the TFV to ‘prepare a draft implementation plan and submit it to the newly constituted Trial Chamber within six months’.[vii] In this regard, the Chamber ordered the TFV to provide, in the draft implementation plan, ‘the anticipated monetary amount that it considers necessary to remedy the harms caused by the crimes for which Mr Lubanga was convicted’ as well as ‘the monetary amount, if the Board of Directors so decides, that it will complement as an advance in order that the awards can be implemented’.[viii] The Chamber indicated that ‘[a] gender-inclusive approach should guide the design of the principles to be applied to reparations, ensuring that they are accessible to all victims in their implementation’ and that ‘gender parity in all aspects of reparations is an important goal of the Court.’[ix] Moreover, the Chamber indicated that ‘[c]ompensation is to be approached on a gender-inclusive basis and awards should avoid reinforcing previous structural inequalities and perpetuating prior discriminatory practices.’[x]

The Chamber rejected the Women’s Initiatives for Gender Justice’s request for leave to submit observations, considering that the aspect of eligibility for reparations for victims of sexual and gender-based crimes was ‘not relevant.’[xi] The Chamber also rejected requests for leave to submit observations by other civil society organizations, specifically Justice Plus, Terre des Enfants, Fédération des Jeunes pour la Paix Mondiale, and Avocats Sans Frontières, holding that it was not ‘desirable for the proper determination of the case.’[xii]

The Appeals Chamber assessed the Trial Chamber’s Reparations Decision in light of five elements, which it considered ‘essential’ to a reparations order.[xiii] These elements along with the Chamber’s assessment are described below.

The Order for Reparations Must Be Made Against the Convicted Person

The Appeals Chamber recalled that the Trial Chamber had failed to issue an order for reparations against Lubanga, primarily because of the circumstances of his indigence.[xiv] The Appeals Chamber found in this respect that ‘the Trial Chamber erred in not making the reparation order against Mr Lubanga and through the Trust Fund.’ It further found that ‘an order for reparations ha[d] to be issued in all circumstances against the convicted person.’[xv]

The Appeals Chamber considered that the principle of accountability for the perpetrator, as established in the Trial Chamber’s Reparations Decision, clearly indicated that reparations orders ‘should be made against the convicted person.’[xvi] It then analyzed and concluded that this principle could not be ‘deviated from,’ on a case-by-case basis.[xvii] It opined that ‘issuing an order for reparations “against” the convicted person and acting ”through” the Trust Fund [we]re not mutually exclusive concepts’ as the Trial Chamber had ‘appear[ed] to interpret.’[xviii] The Appeals Chamber considered that reparations awarded through the TFV pursuant to Article 75(2) of the Statute were not an alternative to reparation orders made against a convicted person. The Chamber found that this interpretation, supported by the RPE, the Regulations of the TFV and the ASP Resolution on Reparations, was reinforced by the French version of the Statute suggesting that for reparations purposes, the TFV can act as an intermediary but not as a substitute to the convicted person.[xix]

Regarding the standard of causation, the Appeals Chamber recalled the Trial Chamber’s finding that ‘the ‘’damage, loss and injury’’, which form the basis of a reparations claim, must have resulted from the crimes’ and that the appropriate standard needs to take into account ‘competing interests and rights of the victims and the convicted person.’[xx] The Appeals Chamber considered that the principle embodied in Rule 85(a) of the RPE was that ‘[r]eparation is to be awarded based on the harm suffered as a result of the commission of any crime within the jurisdiction of the Court.’ It added that the causal link between the harm and the crime and therefore the status of victim is to ‘be determined in light of the specificities of the case.’[xxi]

Concerning the determination of the appropriate standard of proof, the Appeals Chamber agreed with the Trial Chamber’s finding that ‘a less exacting standard’ should apply to reparations proceedings because they are ‘fundamentally different’ from trial proceedings and that factors such as ‘difficulties that victims may face in obtaining necessary evidence’ are significant. While the Chamber agreed with this principle, it considered that the Trial Chamber had not clearly set out its reasoning on this point, and therefore amended the Trial Chamber’s decision to articulate the principle as follows: ‘the applicant shall provide sufficient proof of the causal link between the crime and the harm suffered, based on the specific circumstances of the case […] tak[ing] into account any difficulties that are present from the circumstances of the case at hand.’[xxii]

The Appeals Chamber also found that the Trial Chamber’s articulation of two standards of proof, namely with regards to reparations made through the TFV (‘wholly flexible approach’) versus reparations ordered against the convicted person (‘balance of probabilities’) to be ‘legally incorrect’, because an order for reparations must always be made against the convicted person. The Appeals Chamber did not address this further since the reparations order must be made against the convicted person, and since Lubanga’s Defense did not ‘appear to allege that the standard of “balance of probabilities” [wa]s an error’, this issue had not been appealed.[xxiii]

The Order for Reparations Must Establish and Inform the Convicted Person of His or Her Liability

The Appeals Chamber recalled that the Trial Chamber had ordered reparations to be made through the ‘other resources’[xxiv] of the TFV. This order was based on the Trial Chamber’s finding that because of his indigence, Lubanga could not be held liable for the reparations awarded.[xxv] The Chamber further noted that the Trial Chamber had failed to address submissions from the parties and participants relating to ‘a monetary advance by the TFV, with liability remaining with Mr Lubanga and enforceable should his financial situation change.’[xxvi]

In contrast, the Appeals Chamber found that Lubanga’s indigence was ‘of no relevance’ to his liability for reparations awards and found him liable for reparations in relation to the harm caused to the direct and indirect victims[xxvii] of the crimes for which he was convicted.[xxviii] It further found that it fell ‘solely within the discretion of the Trust Fund’s Board of Directors’ to determine whether ‘other resources’ should be used to complement the resources collected through awards for reparations.[xxix] In this respect, the Chamber specified that the intervention of the TFV in advancing its ‘other resources’ did not exonerate the convicted person who ‘remains liable and must reimburse the Trust Fund.’[xxx]

The Chamber also addressed the scope of the convicted person’s liability for reparations, finding that it must be proportionate to the harm caused and take into account the mode of liability under which the person was found guilty.[xxxi] It further stressed that the scope of the Lubanga’s liability for reparations should be imposed by the Trial Chamber, noting that if the Appeals Chamber were to do so such a determination would have been made for the first time in the case, be final and thus not appealable. It therefore considered that given the ‘particular circumstances of the case’, ‘the parties shall have the opportunity to appear before the Trial Chamber or make submissions in writing on the scope of Mr Lubanga’s liability, in light of the information provided by the Trust Fund in its draft implementation plan.’[xxxii]

Lastly, the Appeals Chamber analyzed the standard of causation adopted by the Trial Chamber, requiring ‘proximate cause’ and a ‘but for’ relationship between the crime and the harm suffered by the victims. The Appeals Chamber recalled in this regard the Trial Chamber’s following findings: that the harm forming the basis of reparations must have resulted from the crimes for which the accused was convicted; that the approach to be taken in relation to causation was not settled in international law and not precisely defined in the court’s legal framework; and that the ‘proximate cause’ standard applied, as opposed to limiting reparations to the ‘immediate’ or ‘direct effects’ of the crimes. In particular, the Trial Chamber found that ‘the Court must be satisfied that there exists a “but/for” relationship between the crime and the harm and, moreover, the crimes for which Mr Lubanga was convicted were the “proximate cause” of the harm for which reparations are sought.’[xxxiii]

The Defense argued that the proximate cause standard and the ‘but/for’ test articulated by the Trial Chamber were inadequate to assess the causal link between the harm and the crimes because it was ‘vague’ and ‘subjective.’ It also argued that there is a common standard applied under international law requiring the causal link to be ‘direct and immediate.’[xxxiv] The Appeals Chamber rejected this ground of appeal finding that the Defense had not ‘demonstrated that there is a “definite trend” in international courts and bodies towards adopting a restrictive approach with regard to causation.’[xxxv] The Appeals Chamber also found that the Defense had not demonstrated ‘how the application of the “but/for” relationship and the “proximate cause” standard would infringe on his rights, nor how the application of the “direct and immediate link” would remedy the alleged vagueness of the standard in the Impugned Decision.’[xxxvi]

The Order for Reparations Must Specify the Type of Reparations, Either Individual, Collective or Both

The Appeals Chamber first analyzed the type of reparations ordered by the Trial Chamber, since the parties and participants had ‘varied understandings’ on whether both individual and collective reparations had been ordered by the Trial Chamber.[xxxvii] The Appeals Chamber clarified this point and considered that the Trial Chamber only decided to award reparations on a collective basis pursuant to Rule 98(3) of the RPE, and it did not award individual reparations pursuant to Rule 98(2) of the RPE.[xxxviii] The Chamber noted that while the Trial Chamber’s reference to Regulations 60-65 of the Regulations of the TFV which apply to individual reparations orders, may have caused ‘a degree of uncertainty’, this reference was not intended to order reparations on both a collective and individual basis. The Appeals Chamber further noted that the Trial Chamber had based its decision on the TFV’s suggestion that ‘a community-based approach […] would be more beneficial and have greater utility than individual awards’ and had subsequently ‘endorsed’ the plan proposed by the TFV applying in the case of a collective reparations order.[xxxix]

The Chamber also analyzed whether the Trial Chamber had erred in not ordering both collective and individual reparations on the basis of the individual reparation requests filed.[xl] It considered that the Court’s legal framework provided for two distinct procedures for reparations awards, including an individual one which is primarily application based, and a collective one.[xli] With respect to the latter, the Chamber held that a decision ordering only collective reparations awards did not require a ruling on the merits of individual applications for reparation awards.[xlii] In this regard, the Chamber rejected arguments from participants[xliii] that the Trial Chamber had violated internationally recognized human rights standards by ordering collective reparations without considering the individual applications for reparations. It also rejected the argument that ‘not ruling on the merits of the individual requests undermine[d] the actual objective of the reparation proceedings.’[xliv]

The Chamber next analyzed the Trial Chamber’s order to the Registrar to transmit individual applications to the TFV. It noted that no clause of confidentiality had been included in the order and considered it appropriate to instruct the Registrar to seek the victims’ consent for disclosure of confidential information to the TFV.[xlv] The Chamber further noted that the Trial Chamber’s Reparations Decision made victims’ participation in reparations programmes dependent on a determination by the TFV. Considering that at the time victims applied for reparations, they did not know ‘the kind of a collective programme that would be ultimately adopted’, the Chamber directed the TFV to seek consent from the victims whose applications will be transmitted to it, to participate in the collective reparation programme.[xlvi]

Lastly, the Chamber dismissed the Defence argument that Lubanga’s rights were infringed as he was denied the opportunity to challenge the individual requests for reparations.[xlvii] It found in this respect that Lubanga had been able to, and had indeed did challenge `the criteria established in the Impugned Decision that are applicable to the standards of proof and causation for determining an individual’s eligibility in a collective award.’[xlviii]

The Order for Reparations Must Define the Harm Caused to Direct and Indirect Victims as a Result of the Crimes for which the Person was Convicted as well as Identify the Appropriate Modalities of Reparations Based on the Circumstances of the Case

The Appeals Chamber found that the Trial Chamber had ‘erred in delegating to the TFV the task of defining the harms caused to direct and indirect victims as a result of the crimes for which Mr Lubanga was convicted.’[xlix] The Chamber emphasized that the identification of the harm to victims must be determined by the Trial Chamber, considering that the victims and the convicted person ‘must be informed of this critical aspect’ of reparations orders and be able to ‘meaningfully’ challenge it.[l] The Chamber also considered the ‘real risk’ that the different mandates of the TFV, including assistance and reparations, ‘may be blurred’.[li] In this regard, it noted the broader scope of the TFV’s assistance mandate, which is not linked or limited to the parameters of a conviction before the ICC, and held that a judicial determination of the harm would ‘ensure that reparations are not awarded to remedy harms that are not the result of the crimes’ for which a person was convicted.[lii] The Chamber added that the assessment of the extent of the harm is distinct from the identification of the harms caused to direct and indirect victims.[liii] With respect to the former, the Trial Chamber may ‘determine the scope, extent of any damage, loss and injury to, or in respect of, victims in the order for reparations’ or ‘define the harms caused to direct and indirect victims and set the criteria that are to be applied by the Trust Fund for purposes of assessing the extent of the harms.’[liv]

The Chamber proceeded to amend the Trial Chamber’s Reparations Decision by defining the harm to victims caused by the crimes for which Lubanga was convicted.[lv] Noting that ‘the Trial Chamber did not elicit any evidence specific to harm caused […] specifically for the purpose of reparations’, the Chamber stressed that in its determination of the definition of harm, it would limit itself to ‘the circumstances of this case’.[lvi] These circumstances included ‘the decisions relevant to victim participation and findings in the Conviction Decision insofar as they relate to defining the harm caused by the crimes for which Mr Lubanga was convicted.’[lvii] The Chamber also considered the Sentencing Decision to be of relevance in defining the harm.[lviii] The Appeals Chamber then defined the harm caused by the crimes Lubanga was convicted as follows:

A. With respect to direct victims:

Physical injury and trauma;

Psychological trauma and the development of psychological disorders, such as, inter alia, suicidal tendencies, depression, and dissociative behaviour;

Interruption and loss of schooling;

Separation from families;

Exposure to an environment of violence and fear;

Difficulties socialising within their families and communities;

Difficulties in controlling aggressive impulses; and

The non-development of ‘civilian life skills’ resulting in the victim being at a disadvantage, particularly as regards employment.

B. With respect to indirect victims:

Psychological suffering experienced as a result of the sudden loss of a family member;

Material deprivation that accompanies the loss of the family members’ contribution

Loss, injury or damage suffered by the intervening person from attempting to prevent the child from being further harmed as a result of a relevant crime; a

Psychological and/or material sufferings as a result of aggressiveness on the part of former child soldiers relocated to their families and communities.[lix]

The Appeals Chamber assessed whether sexual and gender-based crimes could be defined as harm resulting from the crimes for which Lubanga was convicted and considering that based on the circumstances of the case, it could not, it amended the Reparations Decision in this regard.[lx] The Appeals Chamber noted that in the Sentencing Decision, the Trial Chamber had not considered sexual and gender-based crimes as part of the gravity of the crimes or as an aggravating factor of the crimes for which Lubanga was convicted, finding that the acts of sexual violence could not be attributed to Lubanga. The Appeals Chamber considered that this finding led to the conclusion that ‘the Trial Chamber did not establish that harm from sexual and gender-based violence resulted from the crimes for which Mr Lubanga was convicted.’ It consequently amended the Trial Chamber’s Reparations Decision to reflect that Lubanga could not ‘be held liable for reparations in respect of such harm.’[lxi] The Chamber added that this finding did not preclude victims of sexual and gender-based crimes to benefit from possible activities undertaken by the TFV within its assistance mandate.[lxii]

The Appeals Chamber found no error in the Trial Chamber’s identification of the most appropriate modalities of reparations in the case, including ‘restitution, compensation, rehabilitation as well as others with a symbolic, transformative and preventive value’.[lxiii] It held that a Trial Chamber should identify the modalities of reparations and the TFV ‘shall design awards for reparations on the basis of all or some of those modalities.’[lxiv] It added in this respect that the designing of the award will also be informed by the views of victims, members of the affected communities and potentially experts, whom the TFV was instructed to consult before submitting its draft implementation plan.[lxv]

The Order for Reparations Must Identify the Victims Eligible to Benefit from Reparations or Set Out the Criteria of Eligibility

The Appeals Chamber found that the Trial Chamber had erred in adopting a ‘community-based approach’ without setting out criteria to distinguish between members of the communities who suffered harm as a result of the crimes for which Lubanga was convicted and who were therefore eligible for reparations from other members of the community.[lxvi] The Chamber amended the Trial Chamber’s Reparations Decision in this respect, but also stated that the amendment did not prevent members of the community who were not eligible for reparations, to benefit from activities from the TFV in its assistance mandate.[lxvii] The Chamber also concluded that the Trial Chamber had not erred ‘by extending Mr Lubanga’s liability for reparations to localities not mentioned in the Conviction Decision, but mentioned in the evidence of the witnesses listed in the […] Conviction Decision.’[lxviii]

Read the reparations decision issued by the Appeals Chamber on March 3, 2015 here.

Read Women`s Initiatives for Gender Justice Statement on the Change in Chamber`s Approach to Reparations in the Katanga case here.

Read the reparations decision issued by Trial Chamber I on August 7, 2012 here.

Read the statement by the Women’s Initiatives for Gender Justice on the Trial Chamber`s reparations decision here.

Read a more detailed analysis of the reparations decision and the filings of the participants in the Gender Report Card 2012.

Read the May 10, 2012 observations of the Women’s Initiatives for Gender Justice on reparations here.

Read the Women’s Initiatives for Gender Justice March 2012 request for leave to participate in reparations proceedings here.

Read the decision granting leave to the Women’s Initiatives for Gender Justice to participate in reparations proceedings here.

[xix] ICC-01/04-01/06-3129, paras 71-75. Article 75(2) provides, in relevant parts: ‘Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79.’ As noted by the Chamber, in the French version of ‘through the Trust Fund’ reads ‘par l’intermédiaire du Fonds’. ICC-01/04-01/06-3129, para 74.

[xxvii] Indirect victims include `the family members of direct victims, anyone who attempted to prevent the commission of one or more of the crimes under consideration, individuals who suffered harm when helping or intervening on behalf of direct victims, and other persons who suffered personal harm as a result of these offences`. ICC-01/04-01/06-3129-AnxA, para 6.

[xli] ICC-01/04-01/06-3129, paras 147-149. The Appeals Chamber specified that the first procedures for awards for reparations, ‘which relates to individual reparation awards, is primarily application (“request”) based and is mainly regulated by rules 94 and 95 of the Rules of Procedure and Evidence. The second relates to collective reparation awards and is regulated in relevant part by rules 97 (1) and 98 (3) of the Rules of Procedure and Evidence.’